Rights of light: developments subsequent to the RICS guidance note

Casting fresh light

27 April 2017

Peter Defoe reviews rights of light developments subsequent to the recent RICS guidance note 

It would appear that no sooner had the RICS published the second edition of its Rights of light guidance note in March 2016 than a key piece of legislation was amended to affect the ability of a local authority to appropriate land for planning purposes, thus preventing the grant of an injunction for loss of daylight. A recent appeal case, however, reinforces the need to deal properly with concerns about loss of light.

Act gains assent

In May last year, the Housing and Planning Act 2016 received Royal Assent (see Change on the way). Section 203 of the act covers the power to override easements and other rights, which was previously dealt with by section 237 of the Town and Country Planning Act 1990, and under that legislation, appropriation through compulsory purchase was not without difficulty. It is hoped that the new act will make the process much simpler, but only time will tell.

Section 203 now provides that a person may carry out building or maintenance work even where this involves interfering with a relevant right or interest, or breaching of a restriction as to the use of land that arises by virtue of a contract.

A recent appeal case reinforces the need to deal properly with concerns about loss of light

They may do so on the condition that there is planning consent for the building or maintenance work; the work is carried out on land that has at any time on or after the day on which this section comes into force become vested in, or acquired by a specified body including statutory authorities, although to have this right they must have the necessary enabling powers in legislation; or the land has been appropriated by a local authority for planning purposes as defined by section 246(1) of the 1990 act.

Critically, to overcome a deficiency previously identified in section 237 a person may use land in a case to which section 246(1) or section 203 of the 2016 act applies even if the use involves interfering with a relevant right or interest, or breaching a restriction as to the use of land arising by virtue of a contract.

Where the land is currently owned by a specified authority, it is to be treated for the purposes of section 246(1) of the 1990 act or section 203 of the 2016 act as if it were not currently owned by that authority. The purpose of this is to treat the acquisition as though it were a compulsory purchase.

The act states that exceptions will apply in respect of National Trust land, but no other exceptions have been identified.

Section 204

Section 204 of the 2016 act deals with compensation for overridden easement. It states that the compensation is to be calculated on the same basis as compensation payable under sections 7 and 10 of the Compulsory Purchase Act 1965, and any dispute about this may be referred to and determined by the Upper Tribunal of the justice system.

This is no different to the method applied under section 237 but, as the guidance note points out, this method of extinguishment is complex and will often require specialist legal advice.

In fact, we have yet to see any cases where this approach has been taken. But if it works according to the wording of the legislation, then appropriation is likely to remove a great deal of uncertainty when seeking to eliminate the risk of injunction for rights of light injury. Nonetheless, the authorities may still be required to demonstrate that they have attempted to settle any claim by negotiation.

Case for concern

Ottercroft Ltd v Scandia Care Ltd (1) and Dr Mehrdad Rahimian (2) was heard originally in Oxford County Court in January 2015. It has since been heard in the Court of Appeal, which decided that the developer’s behaviour and breach of an undertaking not to interfere with its neighbour’s light outweighed the fact that the loss was relatively minor and capable of being compensated with a small payment; this is one of the principles established in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287.

Ottercroft involved the relatively common need to replace an existing wooden fire escape staircase with a metal one. Ottercroft owned the restaurant that neighboured Scandia’s property and complained that the new staircase obscured its kitchen; it sought an injunction requiring the removal of the staircase. While Scandia accepted that the neighbour’s right to light was infringed, it argued that an injunction was not the appropriate remedy.

It was stated that the value of the loss of light was £886 as compared with the cost of relocating the staircase, which was stated to be around £6,000. Usually, a loss that could be compensated by £886 would be considered no greater than minor, and commercially speaking we would expect to be able to settle even if a higher sum needed to be paid to reach that settlement. However, in this case Oxford County Court and subsequently the Court of Appeal decided to take account of the conduct of the parties.

It was found that Rahimian had acted in an un-neighbourly manner from the beginning

It was found that Rahimian, a director at Scandia, had acted in an un-neighbourly manner from the beginning. He apparently knew that the staircase would infringe Ottercroft’s right to light but still proceeded to put it up, even when threatened with legal proceedings.

Then, despite undertakings given by Scandia and Rahimian to the contrary, they continued to construct the staircase at a time when they knew the neighbouring premises would be vacant and did not inform Ottercroft. Taking all of this into account, the county court judge granted an injunction.

It was perhaps inevitable that Scandia and Rahimian decided to appeal, arguing that the judge had not acted proportionately and that his decision was based on unfounded assumptions.

The Court of Appeal concluded that the new staircase did infringe Ottercroft’s right to light; there was evidence that it was feasible to move the staircase, albeit at a cost of around £6,000; and the judge was entitled to consider Scandia’s and Rahimian’s conduct in the round and was not wrong to exercise his discretion on the basis of such conduct.

The court found that Scandia and Rahimian had acted in a high-handed manner and had tried to steal a march on Ottercroft. In so finding, it decided that an injunction was necessary not only to do justice to Ottercroft but also to serve as a warning to others.

The appeal was unanimously dismissed and the injunction was upheld. This decision very much supports the one in Coventry & Ors v Lawrence & Anor (No 2) [2014] UKSC 46 (23 July 2014) and emphasises the need to be completely open and honest when dealing with adjoining owners.

Ottercroft Limited v Scandia Care Limited and Dr Mehrdad Rahimian (B2/2015/1149) was heard by the Court of Appeal on 6 July 2016, and recently reported.

Peter Defoe is Partner and Business Systems Manager at calfordseaden LLP

Further information

  • Related competencies include Legal/regulatory compliance
  • This feature is taken from the RICS Building surveying journal (March/April 2017)